Santosh Hegde, J. -
(1.)The appellant along with 3 others was charged for offences punishable under S. 302 read with S. 34, I.P.C. and Sections 25 and 27 of the Arms Act (the Act). In the said trial, the appellant was arrayed as accused No. 4 (A-4) before the Sessions Judge, Rohtak. After trial, the learned Sessions Judge came to the conclusion that the prosecution has failed to prove the case against all the accused persons and acquitted all of them of the charges. It is relevant to mention herein that during the trial A-1 Kanwar Singh died and the proceedings had abated as against him. Being aggrieved by the order of acquittal, the State preferred an appeal before the High Court of Punjab and Haryana at Chandigarh in Cri. Appeal No. 238/DBA/89. The High Court by its judgment dated 9-11-1995 allowed the appeal so far as the present appellant is concerned, and convicted him of an offence punishable under S. 302, I. P. C. and sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/- in default to further undergo RI for one year. The High Court also found the appellant guilty of an offence punishable under Ss. 25 and 27 of the Arms Act and imposed a sentence of RI for one year with a fine of Rs. 1,000/-, in default RI for 6 months on that count. It directed both the sentences to run concurrently. The State appeal against the acquittal of A-2 and A-3 was dismissed by the High Court, therefore, the appellant is now before us in this appeal.
(2.)Briefly stated, the prosecution case is that the accused, the deceased and the complainant were all closely related. There was a dispute between Kanwar Singh A-1 and deceased Hari Om (allegedly murdered by the accused). It is the further case of the prosecution, which, of course, is not disputed, that the appellant in this appeal was serving the Central Reserve Police Force at Jammu was on orders of transfer to Tripura. En route to his place of posting, he had taken some leave to visit his ailing sister at the village, hence, he had come to the village. Pursuant to the said dispute, it is stated that on the night before 16-3-1986 A-1 Kanwar Singh had misbehaved by abusing deceased Hari Om, therefore, deceased Hari Om had decided to lodge a police complaint on the next day i.e. 16-3-1986. With the said intention, it is stated that the deceased Hari Om with PW-3 Raj Bala and PW-7 Gayatri on that day proceeded towards the Police Station at about 9 a.m. and on the way the four accused persons who were binding in a Nullah waylaid the deceased Hari Om and A-1 shot at him first with a countrymade pistol but the same did not fire. Thereafter, it is stated that the appellant shot with a single barrel gun at the deceased in the chest and Hari Om died because of the said shot. The incident as stated above, was witnessed by PWs. 3 and 7. It is the further case of the prosecution that the accused persons after killing Hari Om threatened PWs. 3 and 7 that if they named them they would eliminate their entire family, and fled from the place of the incident. The further case of the prosecution is that on hearing about the incident, PW-6, the brother of PW-3 came to the spot. On his coming, PWs. 3 and 7 left him at the spot and proceeded to the Police Station to lodge a complaint which was done around 10.15 a. m. at the Police Station which is stated to be only 3 kms. away from the scene of the occurrence. The complaint in question was lodged by PW-3. The investigating officer after making the necessary diary entries and sending the special report proceeded to the place of the incident along with P. Ws. 3 and 7 and held the inquest. He recorded the statement of witnesses and sent the body for post mortem examination. The post mortem examination conducted by PW-1 has established that the deceased Hari Om died of gun shot injuries. It is the further case of the prosecution that A-2 surrendered before the Police on 20-3-1986 while A-1 and A-3 were arrested on 24-3-1986 and A-4 who had by then joined duty in Tripura was allegedly arrested on 10-4-1986 and brought to the village on 17-4-1986. It is further stated that on a statement made by the appellant, a single barrel .12 bore gun was recovered from the house of A-3 who is the brother of the appellant herein which was kept concealed in the South Western corner of the Chabutra. On the basis of the above material gathered during the investigation the accused persons were charged as stated above, and the learned Sessions Judge having come to the conclusion that the prosecution has failed to establish the case against the accused persons acquitted them while the High Court in appeal has convicted the appellant herein and acquitted the other two accused persons, A-1 in the meanwhile had died.
(3.)We have heard learned counsel for the parties and perused the records. The prosecution case as against this appellant rests on the oral evidence of PWs. 3 and 7. Apart from the general evidence given as to the motive of A-1 to eliminate deceased Hari Om. So far as the present appellant is concerned, the prosecution also relies upon the alleged recovery of the weapon made from the house of A-3 at the instance of the appellant.